RAGHUNANDAN SHARMA Vs. JAI KUMARI (DECEASED) & ANR

JUDGEMENT

(1.) This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the appellant/defendant no.1 against the impugned Judgment of the First Appellate Court dated 7.1.2015. The First Appellate Court by the impugned Judgment dated 7.1.2015 reversed the Judgment of the Trial Court dated 25.8.2012 dismissing the suit, and thus has decreed the suit filed by the respondent nos. 1(a) to 1(c)/plaintiffs for declaration and injunction holding that the Judgment and Decree dated 17.8.1961 passed by the Civil Judge in suit no. 405/120 of 59/61, titled as Ram Prasad Vs. Bhudev Sharma and Ors with respect to the suit property bearing MCD no. A-122/2, Ashok Nagar, Delhi-110093, as not binding on the respondent nos. 1(a) to 1(c)/plaintiffs. It was further declared that respondent nos. 1(a) to 1(c)/plaintiffs had right, title and interest in the suit property by virtue of the various documents executed in their favour dated 25.6.1985 being the Agreement to Sell, General Power of Attorney, Will, etc. Decree for permanent injunction was also passed in favour of respondent nos. 1(a) to 1(c)/plaintiffs restraining the appellant/defendant no.1 from interfering in the peaceful possession of the suit property of respondent nos.1(a) to 1(c)/plaintiffs. I may note that the suit was originally filed by one Smt. Jai Kumari who expired pendente lite and is now therefore represented by respondent nos. 1(a) to 1(c).

(2.) The suit plaint shows that the plaintiff filed a suit claiming rights in the suit property admeasuring 200 sq. yards and bearing MCD no. A-122/2, Ashok Nagar, Delhi-110093 stating that rights of purchase in the same were from Sh. Shish Pal Singh vide usual documentation dated 25.6.1985 being the Agreement to Sell, Power of Attorney, Will, etc. Sh. Shish Pal Singh had purchased the suit property from Sh. Kanta Prasad by a registered Sale Deed dated 25.10.1971. Plaintiff claims that she was in possession of the suit property since 1985 and that she was paying house tax since then and also that there was an electricity connection and a water connection in her name in the suit premises. It was pleaded that the appellant/defendant no.1 sought to dispossess the plaintiff from the suit property in terms of the Judgment dated 17.8.1961 of the Civil Judge, but that Judgment dated 17.8.1961 was illegal and not binding upon the plaintiff. Plaintiff also claims ownership of the suit property on the ground of adverse possession being in continuous possession since 1985. Hence in the suit, the following reliefs were prayed:-

(3.) Appellant, and the respondent no. 2 in this appeal, were the defendants in the suit. Respondent no. 2/defendant no.2 did not contest the suit and stated that he had no interest in the suit property. It is only the appellant/defendant no. 1, namely, Sh. Raghunandan Sharma who contested the suit. It was pleaded by the appellant/defendant no. 1 in the written statement that the rights claimed by the plaintiff in the suit property were hit by the doctrine of lis pendens, inasmuch as, the Decree dated 17.8.1961 was taken up in appeal and the first appellate court decided the first appeal against Sh. Bhudev Sharma by confirming the decree of the suit property in favour of Sh. Ram Prasad vide its Judgment dated 28.10.1971. It was therefore pleaded that the Sale Deed dated 25.10.1971 executed by Sh. Kanta Prasad in favour of Sh. Shish Pal Singh was hit by the doctrine of lis pendens noting that Sh. Kanta Prasad had himself purchased the suit property from the defendant Sh. Bhudev Sharma during the pendency of the suit titled as Ram Prasad Vs. Bhudev Sharma & Ors which was decreed on 17.8.1961. It was further pleaded that a transferee pendent lilte had no rights in view of Order XXI Rule 102 CPC and that execution proceedings are already going on in which objections have been filed by different persons to harass the appellant/defendant no.1 (decree holder under the Decree dated 17.8.1961). Counsel for the appellant/defendant no.1 states that one set of objections stands dismissed right till the Supreme Court. Counsel for the appellant/defendant no.1 states that execution proceedings with respect to the Judgment and Decree dated 17.8.1961 as confirmed by the first appellate court by its Judgment dated 28.10.1971 are still pending before the executing court with respect to the suit property.